Obama pares down Guantanamo population, but about 40 inmates will remain

Brennan Linsley / Associated Press

About 40 inmates will remain in the prison at Guantanamo Bay in Cuba when President Barack Obama leaves office.

About 40 inmates will remain in the prison at Guantanamo Bay in Cuba when President Barack Obama leaves office.

(Brennan Linsley / Associated Press)

Missy Ryan, Julie TateThe Washington Post

The Obama administration has informed Congress of its plans to resettle as many as 19 detainees held at Guantanamo Bay, Cuba, in a final sprint to pare down the inmate population at the military prison, U.S. officials said.

Even if the transfers occur before Jan. 20 as planned, about 40 inmates will remain at the facility, a lasting reminder of President Barack Obama's failure to deliver on his Inauguration Day promise to close the prison and an illustration of the difficulty of following through on one of his central national security goals.

Obama's inability to close Guantanamo after eight years in office empowers President-elect Donald Trump to keep the prison operational. Trump has said he will make it part of his counterterrorism policy and "load it up with some bad dudes."

The end to Obama's Guantanamo plans also sets up a renewed debate over the proper handling of terrorism suspects and the legality of a system that was designed to interrogate and hold al-Qaida suspects after the Sept. 11, 2001, attacks.

"The bottom line is that the continuing existence of Guantanamo is a legal and moral blight," said Hina Shamsi, director of the American Civil Liberty Union's National Security Project. "It is the embodiment of U.S. violations of the rule of law, unfair trials and unlawful and indefinite detentions without charge or trial."

The 11th-hour transfer plans, which would move a group of prisoners to the United Arab Emirates and additional inmates to Oman, Saudi Arabia and, possibly, Italy, culminates a flurry of resettlements that U.S. diplomats have negotiated in recent years. The planned transfers were first reported by the New York Times.

Since Obama took office, the United States has repatriated or resettled 179 prisoners, helping to winnow the detainee population from a peak under President George W. Bush of more than 700 to 59 today.

Early in his administration, Obama attempted to bring suspects to the United States for trial in the federal courts, but he abandoned those efforts in the face of stiff political resistance. Over the years, Congress has enacted tight restrictions on how and where prisoners can be resettled.

Last winter, Obama made another appeal to Congress, asking them to set aside opposition andconsider a plan for wrapping up a 15-year detention saga by bringing some inmates to the United States for imprisonment here.

But legal experts and detainee advocates fault Obama for not pushing harder for closure, saying he could have skirted congressional obstacles if he had been willing to weather the political fallout.

As Obama prepares to leave office, he leaves behind a military trial system so slow that five 9/11 suspects, including self-proclaimed mastermind Khalid Sheikh Mohammed, are not expected to be tried until 2020. Guantanamo also holds a group of "forever prisoners," whom officials say they cannot release because of security risks but who also cannot be tried because of a lack of appropriate evidence.

"History is going to judge him badly for his failure to close Guantanamo and particularly for his failure to do everything he has legal authority to do," said Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, which represents Guantanamo prisoners.

Emily Horne, a White House spokeswoman, said the administration has continued to take "all possible steps" to move detainees out of Guantanamo and close the prison.

"The continued operation of the Guantanamo Bay detention facility weakens our national security by draining resources, damaging our relationships with key allies and partners and emboldening violent extremists," she said.

Some lawmakers continue to object even to transfers that arevetted by a panel of law enforcement, military and intelligence officials. Rep. Mac Thornberry, R-Tex., chairman of the House Armed Services Committee, warned against additional transfers in a letter earlier this month to Defense Secretary Ashton Carter, who signs off on each resettlement.

"I am concerned that there has been insufficient due diligence prior to transfer, and that recipient nations have lacked the capability to enforce proper security measures to mitigate the risk of re-engagement," Thornberry wrote in the letter, a copy of which was seen by The Washington Post.

While a small minority of released detainees have been found to have returned to militant activity, officials say the risks have been overblown.

Although there are 23 prisoners approved for resettlement overseas, U.S. officials say they have no plans to transfer anyone beyond the 19 whose transfer has already been announced to Congress.

Republicans have also found fault with the administration's practice of keeping secret details of security arrangements for resettled detainees and information about U.S. financial support received by released prisoners.

Articulating the new optimism felt by critics of Obama's approach, Rep. Edward Royce, R-Calif., who chairs the House Foreign Affairs Committee, wrote this week that "on Jan. 20, we have an opportunity to chart a better way."

While Trump has not spoken extensively about Guantanamo, he has criticized prisoner releases and identified the military prison as a "very safe place" to house suspected militants.

"I want to make sure, 100 percent sure, that if we're going to release people, number 1, they're going to be people that can be released, and it's going to be safe to release them," Trump said in an interview with the Miami Herald.

He also suggested that he would put new prisoners in Guantanamo, possibly even trying U.S. citizens there, a move prohibited by current U.S. law. The last time the United States added to the prisoner population at Guantanamo was in 2008, before Obama took office.

A spokesman for the Trump transition team did not respond to a request for comment.

Legal experts suggest that the continued detention of prisoners, without parallel efforts to resettle them, or efforts to bring new detainees to Guantanamo could be met with fresh legal challenges.

Laura Pitter, senior national security counsel at Human Rights Watch, said that Trump's apparent plans for the prison would feed into militant propaganda and weaken the United States' ability to speak up for human rights worldwide.

"A statement like that just shows . . . a lack of understanding of what Guantanamo means and the danger that keeping it open poses to U.S. national security," she said.